CONSTITUTION 

AND 

PROHIBITION 


'©y 

Senator  William  E.  Borah 


PRESS  OF  THE  AMERICAN  ISSUE  PUBLISHING  COMPANY 
WESTERVILLE.  OHIO.  U S.  A. 


THE  CONSTITUTION 
AND  PROHIBITION 

% Senator  WILLIAM  E.  BORAH 


Mr.  BORAH.  Mr.  President,  it  has  been 
about  eight  years  since  we  amended  the  Consti- 
tution of  the  United  States  and  incorporated  in 
it  what  is  known  as  the  eighteenth  amendment. 
That  amendment  was  not  adopted,  as  is  so  often 
said,  in  haste  or  without  due  consideration  and 
deliberation  upon  the  part  of  the  people  of  the 
United  States.  For  some  50  years  the  subject  of 
prohibition  had  been  under  discussion  throughout 
the  country,  and,  if  I remember  correctly,  at  the 
time  of  the  ratification  of  the  amendment  33 
States  of  the  Union  had  adopted  prohibition. 
After  the  amendment  was  submitted  to  the  States 
for  ratification,  1 believe,  all  except  two  States 
ratified  it.  No  amendment  to  the  Constitution 
has  ever  been  adopted  after  so  full  and  prolonged 
consideration  as  was  the  eighteenth  amendment. 
Whatever  its  merits  or  demerits  may  be,  whether 
it  should  be  now  repealed  or  modified,  there  can 
be  little  controversy  over  the  proposition  that  it 
was  a deliberate  act  at  the  time  it  was  written  into 
the  Constitution  of  the  United  States.  It  was ' 
perfectly  clear  at  that  time  that  the  people  in- 
tended to  promulgate  a national  policy  and  that 
policy  they  inserted  into  their  charter  of  gov- 
ernment. 

This  amendment  provides,  in  part,  as  follows : 

Section  i.  After  one  year  from  the  ratification  of 
this  article  the  manufacture,  sale,  or  transportation  of 
intoxicating  liquors  within,  the  importation  thereof  into, 
or  the  exportation  thereof  from,  the  United  States  and 
all  territory  subject  to  the  jurisdiction  thereof  for  bev- 
erage purposes  is  hereby  prohibited. 

The  language  is  specific  and  all-encompassing 
— that  the  manufacture,  or  sale,  or  importation. 


In  the  United  States  Senate 
ylpril  14,  1926 


or  exportation  of  intoxicating  liquors  “for  bev- 
erage purposes  is  hereby  prohibited.'’ 

This  part  of  the  Constitution  has  been  con- 
strued by  the  Supreme  Court  of  the  United 
States ; and  in  the  first  important  case  which 
went  to  the  court  involving  a construction  of  it, 
the  court  said  that  the  first  section  of  the  amend- 
ment, the  one  embodying  the  prohibition,  is  opera- 
tive through  the  entire  territorial  limits  of  the 
United  States,  binds  all  legislative  bodies,  courts, 
public  officers,  and  individuals  within  those  limits, 
and  of  its  own  force  invalidates  every  legislative 
act,  whether  by  Congress,  by  a State  legislature, 
or  by  a Territorial  assembly,  which  authorizes  or 
sanctions  what  the  amendment  prohibits. 

The  second  section  of  the  amendment — the 
one  declaring  that — 

The  Congress  and  the  several  States  shall  have  con- 
current power  to  enforce  this  article  by  appropriate  leg- 
islation— 

does  not  enable  Congress  or  the  several  States  to 
defeat  or  thwart  the  prohibition  but  only  to  en- 
force it  by  appropriate  means. 

Thus,  Mr.  President,  there  was  written  into 
the  fundamental  law,  into  the  charter  under 
which  we  live,  an  inhibition  against  the  manu- 
facture or  sale  of  intoxicating  liquors,  and  that 
binds  the  Congress  of  the  United  States,  the  sev- 
eral legislatures  of  the  different  States,  the  courts 
of  the  country,  and  each  and  every  particular  in- 
dividual in  the  country ; and  so  long  as  it  remains 
in  the  Constitution  it  is  the  duty  of  the  several 
legislatures,  of  the  Congress,  of  the  courts,  of  all 
agencies  of  government,  of  all  public  officials  and 
of  individuals  to  obey  and  in  their  respective 
places  in  organized  society  to  assist  in  the  en- 
forcement and  upholding  of  the  Constitution.  It 
imposes  a responsibility  and  an  obligation  which 
neither  the  Congress  nor  the  State  legislatures 
can  honorably  shirk  or  in  decency  pass  on  to 
some  other  body.  It  binds  every  official  and 
every  citizen,  and  so  long  as  it  remains  there  it 


[4] 


is  the  first  duty  of  good  citizenship  to  respect  it 
and  seek  to  uphold  it. 

We  are  now,  Mr.  President,  engaged  in  a 
great  campaign  to  find  a way  by  which  to  evade 
the  Constitution  of  the  United  States  without 
apparently  doing  so ; to  find  a method  or  a means 
by  which  we  can  counteract  or  nullify  its  terms 
and  conditions  without  specifically  repealing  this 
part  of  the  Constitution  or  without  modifying  it 
directly.  It  is  a campaign  to  sterilize  the  Con- 
stitution while  professing  to  respect  it. 

No  one  contends  that  those  who  are  opposed 
to  prohibition  have  not  the  right  to  carry  on  a 
campaign  for  the  purpose  of  changing  the  Con- 
stitution. Any  citizen  or  any  body  of  citizens 
who  believe  that  this  is  an  unwise  policy,  that  it 
is  a policy  which  can  not  be  sustained,  a prin- 
ciple which  can  not  be  enforced,  are  not  subject 
to  criticism  in  their  efifort  to  remedy  it  by  elimi- 
nating it  from  the  fundamental  law  of  the  land ; 
but  the  point  which  I desire  to  stress  at  this  time 
and  at  all  other  times  in  the  discussion  of  this 
matter  in  which  I shall  take  part  is  that  so  long 
as  it  remains  a part  of  the  Constitution,  so  long 
as  it  is  unchanged,  it  is  the  duty  of  every  citizen 
loyally  to  support  and  maintain  it,  not  only  in 
letter  but  in  spirit. 

Mr.  EDGE.  Mr.  President,  will  the  Senator 
yield  ? 

Mr.  BORAH.  I yield. 

Mr.  EDGE.  The  Senator,  as  I followed  his 
argument,  implies  that  the  national  prohibition 
act  which  was  passed  by  Congress  as  a method 
of  enforcing  the  eighteenth  amendment  is  as 
liberal  an  interpretation  of  the  eighteenth  amend- 
ment as  Congress  would  be  justified  in  making. 
Does  the  Senator  take  that  position? 

Mr.  BORAH.  I will  come  to  that  discussion 
in  a few  minutes.  I am  going  to  take  up  the 
proposed  amendment. 

Mr.  EDGE.  I desired  to  ask  two  or  three 


[5] 


questions  in  that  connection.  If  the  Senator  pre- 
fers to  have  me  wait,  I will  do  so. 

Mr.  BORAH.  Yes ; if  I do  not  cover  the 
matter,  I invite  the  Senator  to  the  floor  for  the 
purpose  of  elucidating  it  by  questions,  because  I 
have  no  desire  to  avoid  that  proposition.  It  is  a 
legitimate  part  of  the  discussion,  and  we  should 
be  perfectly  willing  to  discuss  it. 

As  I said,  the  right  to  amend  the  Constitution 
is  a right  which  can  not  be  denied,  and  no  one 
can  be  criticized  for  seeking  to  amend  it.  I de- 
sire to  say,  in-  passing,  that  the  insertion  of  this 
amendment  in  the  Constitution  of  the  United 
States  involved  what  to  my  mind  was  a very 
serious  governmental  proposition.  Whether  it 
was  wise  to  take  over  from  the  States  the  great 
body  of  police  power  which  we  took  over  from 
the  States  at  the  time  we  amended  the  Constitu- 
tion is  a very  serious  problem — not  only  a prob- 
lem relating  to  the  question  of  prohibition,  but  a 
problem  relating  to  the  fundamental  principles 
upon  which  our  Government  is  organized.  It 
touches  the  great  and  vital  question  of  local  self- 
government,  and  I do  not  wish  to  minimize  its 
importance  in  this  problem  of  prohibition.  I 
find  no  fault,  therefore,  with  those  who  believ- 
ing it  to  have  been  a mistake  would  seek  to  cor- 
rect the  mistake  by  amending  the  Constitution. 

Mr.  WADSWORTH.  Mr.  President,  will 
the  Senator  comment  upon  another  phase  of  the 
eighteenth  amendment?  Is  it  not  also  extra- 
ordinary in  that  its  ratification  amounted  to  the 
insertion  of  a sumptuary  police  statute  in  a con- 
stitution, thereby  depriving  the  majority  of  the 
people  as  represented  in  the  House  of  Congress 
of  any  opportunity  of  legislating  upon  a problem 
of  that  kind  by  simple  enactment  of  law? 

Mr.  BORAH.  Undoubtedly,  Mr.  President, 
that  is  one  of  the  serious  problems  which  are  in- 
volved in  this  matter ; and  I think  perhaps  that 
is  incorporated  in  the  other  proposition  which  I 
made  relative  to  the  attempt  to  take  over  and 


[6] 


take  into  the  Constitution  a principle  of  police 
power,  and  drawing  away  from  the  States  the 
police  power  which  heretofore  had  belonged  to 
them. 

But,  Mr.  President,  those  things  can  only  be 
changed  by  an  amendment  of  the  Constitution 
itself.  If  it  was  a mistake  to  draw  to  the  National 
Government  this  police  power,  if  it  was  a mis- 
take to  put  into  the  Constitution  of  the  United 
States  a principle  of  sumptuary  law,  the  only 
way  in  which  it  can  possibly  be  met  is  by  a pro- 
posal either  to  repeal  the  eighteenth  amendment 
or  to  modify  it.  Indeed,  Mr.  President,  I doubt 
very  much  if  modification  will  reach  it.  It  seems 
to  me  if  we  are  going  to  deal  with  the  question 
which  we  are  now  discussing — the  question  of 
whether  it  is  wise  to  take  over  this  police  power 
or  to  deal  with  this  matter  as  a sumptuary  prin- 
ciple in  the  Constitution — we  can  not  meet  it  ex- 
cept by  an  elimination  of  the  provision  of  the 
Constitution  itself.  So  long  as  the  Constitution 
stands  one  thing  is  more  fundamental  than  pro- 
hibition, and  that  is  the  enforcement  and  the  up- 
holding of  the  Constitution.  It  involves  the  ques- 
tion of  whether  we  are  a law-abiding  people. 

We  are  discussing,  these  days,  the  question  of 
what  we  shall  do  with  reference  to  amending 
this  provision  of  the  Constitution ; and  about  the 
first  suggestion  that  comes  to  me  when  I suggest 
that  the  situation  can  be  met  only  by  constitu- 
tional amendment  is  that  it  takes  too  long,  that 
it  will  take  an  infinite  amount  of  time  to  change 
the  Constitution  of  the  United  States,  and  that 
there  must  be  some  way  by  which  the  law  can  be 
so  modified  that  we  can  get  intoxicating  liquor 
without  offending  the  Constitution  itself.  In 
other  words,  the  clear  implication  is  that  by  ig- 
noring not  only  the  spirit  of  the  Constitution 
but  the  letter  of  the  Constitution,  we  can  pass  a 
law  which  will  give  percentages  of  alcohol  suf- 
ficient to  enable  the  people  to  enjoy,  as  they 
claim,  their  right  to  the  use  of  intoxicating  liq- 
uor. Impatience  with  the  law  is  mob  rule.  The 


[7] 


man  hunting  his  neighbor  with  a shotgun  is  sim- 
ply impatient  with  the  law.  And  those  who 
would  disregard  the  Constitution  because  it  takes 
too  long  to  amend  it  are  appealing  to  the  spirit 
of  the  mob. 

Mr.  President,  it  is  no  part  of  the  duty  of  a 
citizen  to  ferret  out  means  by  which  to  escape 
from  the  terms  of  the  Constitution.  It  is  no  part 
of  good  citizenship,  in  my  judgment,  when  citi- 
zens find  in  the  Constitution  a provision  which 
they  do  not  like,  to  see  how  far  they  can  pos- 
sibly go  toward  evading  it  or  nullifying  it  with- 
out getting  within  the  inhibition  which  the  courts 
may  lay  upon  them.  So  long  as  the  provision  is 
there,  instead  of  seeking  means  to  evade  it,  it  is 
the  duty  of  the  citizens  of  the  United  States  to 
find  means  to  enforce  it.  If  the  means  do  not 
exist  at  this  time,  if  the  law  is  not  sufficient  and 
efficient,  and  if  the  power  behind  the  law  is  not 
sufficient  to  enforce  it,  then,  instead  of  finding 
means  by  which  to  evade  it,  it  is  our  duty,  and 
the  obligation  rests  upon  us,  to  find  more  effec- 
tive means  by  which  to  make  the  Constitution 
effective.  Change  it  if  you  will ; rewrite  it  again 
if  you  may ; but  so  long  as  it  is  there,  it  is  the 
duty  of  every  loyal  citizen  to  see  to  its  enforce- 
ment. 

Some  of  the  propositions  which  have  been 
made  seem  to  me  most  extraordinary.  If  there 
rests  upon  the  Federal  Government  one  peculiar 
exclusive  and  supreme  duty  it  is  to  see  to  the  en- 
forcement and  the  maintenance  of  the  Constitu- 
tion of  the  United  States  and  not  leave  its  en- 
forcement to  the  several  States  of  the, Union. 
The  respective  States  of  the  Union  are  not  pri- 
marily the  custodians  of  the  integrity  of  the  Con- 
stitution. The  custodian  of  that  integrity  is  the 
Federal  Government  itself.  To  my  mind  any 
scheme  or  any  plan  which  would  shift  to  the 
States  alone  the  obligation  or  the  burden  of  en- 
forcing the  Constitution  is  a most  pronounced 
evasion  of  the  most  solemn  obligation  which 


[8] 


rests  upon  the  National  Government,  and  that  is 
to  protect  its  own  charter,  protect  its  own  life, 
for  the  Constitution  is  its  life. 

The  United  States  attorney  for  New  York  a 
few  days  ago  in  an  interview  said : 

Let  Congress  modify  the  Volstead  Act  so  as  to  permit 
each  State  to  define  nonintoxicating  liquor,  this  defini- 
tion to  bind  both  State  and  Federal  authority. 

So  modify  the  Volstead  Act  as  to  permit  each 
State  to  be  the  judge  of  how  and  to  what  extent 
the  Constitution  of  the  United  States  applies  in 
this  respect  and  what  is  an  interpretation  and 
what  is  an  enforcement  of  the  Constitution  of 
the  United  States  ? The  proposal  is  not  to  amend 
the  Constitution  of  the  United  States.  The  pro- 
vision which  imposes  upon  the  National  Govern- 
ment the  inhibition  of  the  sale  and  use  of  intoxi- 
cating liquors  remains ; but  the  proposal  is  to 
modify  the  statute  which  was  passed,  leaving  the 
enforcement  of  the  principle  of  the  Constitution 
and  the  protection  of  the  integrity  of  the  Con- 
stitution to  the  respective  States,  while  the  Na- 
tional Government  itself  entirely  abandons  that 
obligation. 

It  is  seriously  proposed  that  the  Federal  Gov- 
ernment shall  abandon  the  interpretation  and  en- 
forcement of  its  own  great  charter  and  through 
sheer  cowardly,  contemptible  expediency  leave  it 
to  48  States  with  48  different  rules  and  stan- 
dards to  enforce  and  uphold  it.  To  such  des- 
perate and  despicable  expediency  do  men  resort 
when  they  have  not  the  candor  to  urge  repeal  or 
the  courage  to  preach  open  violation. 

Mr.  President,  as  a matter  of  fact,  the  great 
Civil  War  was  fought  over  that  principle.  To  my 
mind  it  is  treason ; it  is  a deliberate  evasion  of 
the  Constitution,  a nullifying  and  an  annihilating 
of  the  charter  under  which  we  live.  It  is  dis- 
loyalty to  the  first  principle  of  a Federal  Union 
and  a violation  of  the  oath  which  every  Federal 
officer  takes  when  he  takes  office. 


[9] 


Why,  suppose  the  State  of  New  York  fixes  a 
percentage  of  alcoholic  content  such  as  to  be  in- 
toxicating. Shall  the  Congress  of  the  United 
States  and  the  officials  of  the  United  States,  the 
custodians  of  the  Constitution,  acquiesce  in  the 
proposition  and  connive  at  its  disregard  of  the 
Constitution?  Shall  we  leave  it  to  the  State  of 
New  York  or  to  the  State  of  Idaho  or  to  the 
State  of  California  to  say  when  and  how  and  to 
what  extent  the  Constitution  of  the  United 
States  shall  be  applied  and  enforced?  It  would 
make  48  standards.  You  might  have  a standard 
of  7 per  cent  in  New  York,  and  if  so,  they  could 
ship  their  product  to  every  State  of  the  Union. 

You  might  have  a standard  of  2 per  cent  in 
the  State  of  Louisiana,  and  yet  New  York  could 
send  her  7 per  cent  product  into  the  State  of 
Louisiana  against  the  standard  which  they  have 
established  there.  We  would  have  48  different 
standards,  no  one  guarding  or  protecting  or  en- 
forcing or  maintaining  the  Constitution,  but  48 
different  States  applying  their  different  rules. 

A few  days  ago  there  came  to  me  a resolution 
passed  by  a committee  of  one  of  the  dominant 
parties  of  the  country  in  a near-by  State,  and 
the  resolution  reads : 

Resolved,  That  the  county  committee  (of  the  State 
and  county)  recommend  to  the  Congress  of  the  United 
States  that  the  so-called  Volstead  liquor  law  be  amended 
so  as  to  permit  light  wines  and  beer. 

Of  course,  the  constituency  for  which  they 
were  politically  speaking  understands  that  “light 
wines  and  beer”  mean  intoxicating  liquor.  All 
this  disturbance  and  all  this  debate  are  not  for 
the  purpose  of  securing  nonintoxicating  liquor. 
The  people  who  are  insisting  upon  this  change 
are  not  insisting  upon  the  change  for  the  pur- 
pose of  getting  more  nonintoxicating  liquor. 
What  they  understand  is  that  they  are  to  secure 
intoxicating  liquor ; that  wines  and  beer  such  as 
will  give  them  their  intoxicating  drinks  are  to  be 
allowed.  We  have  a great  political  party,  one  of 


[ 10] 


the  dominant  parties  in  the  country,  actually 
passing  resolutions  petitioning  the  Congress  of 
the  United  States  to  violate  or  connive  at  the 
violation  of  the  Constitution  of  the  United 
States,  and  doing  it  for  sheer  political  expedi- 
ency. 

Why  not  say  to  the  people  who  are  asking  for 
light  wines  and  beer,  “You  can  not  secure  in- 
toxicating liquors  which  you  desir.e  until  you 
amend  the  fundamental  law  under  which  you 
live”? 

If  this  question  is  to  be  presented  to  the  peo- 
ple, let  us  present  it  in  such  a way  that  it  will 
raise  the  real  issue,  and  either  give  or  deny  to 
them  that  for  which  they  are  asking,  to  wit,  in- 
toxicating liquor.  The  Legislature  of  the  State 
of  New  York  is  now  in  the  course  of  passing  a 
referendum  law,  as  I understand  it,  and  so  far 
as  that  is  concerned,  New  York  is  simply  in  the 
lead.  Other  States  will  be  asked  to  follow.  In 
the  referendum  which  they  are  to  send  out,  if 
they  pass  the  law,  will  be  this  question : 

Should  the  Congress  of  the  United  States  modify  the 
Federal  act  to  enforce  the  eighteenth  amendment  to  the 
Constitution  of  the  United  States  so  that  the  same  shall 
not  prohibit  the  manufacture,  sale,  transportation,  im- 
portation, or  exportation  of  beverages  which  are  not  in 
fact  intoxicating,  as  determined  in  accordance  with  the 
laws  of  the  respective  States? 

That  would  delegate  or  leave  to  the  respective 
States  the  power  and  authority  to  say  whether  a 
particular  beverage  was  intoxicating.  If  the 
State  fixes  a percentage  which  makes  it  intoxi- 
cating, what  is  the  Government  of  the  United 
States  to  do?  The  Government  of  the  United 
States  is  to  remain  silent.  The  keeper  of  the 
Constitution,  the  sole  power  to  enforce  it  through- 
out the  Union,  is  to  remain  silent  and  connive  at 
the  violation  of  it  from  day  to  day  and  from 
year  to  year.  That  goes  on  through  all  the  48 
States  of  the  Union.  It  means  legal  chaos,  it 
means  constitutional  anarchy,  it  means  the  break- 


[11] 


down  of  constitutional  government.  That  refer- 
endum challenges  the  sincerity  if  not  the  loyalty 
of  the  great  State  of  New  York. 

The  great  debate  which  took  place  prior  to  the 
Civil  War  was  over  that  one  great  question, 
whether  the  States  should  determine  what  laws 
should  be  enforced  and  what  should  not,  under 
the  Constitution  of  the  United  States. 

Mr.  BRUCE.  Mr.  President — 

The  PRESIDING  OFFICER  (Mr.  Oddie  in 
the  chair).  Does  the  Senator  from  Idaho  yield 
to  the  Senator  from  Maryland? 

Mr.  BORAH.  I yield. 

Mr.  BRUCE.  The  Senator  will  remember, 
however,  that  when  the  South  asked  that  the 
fugitive  slave  law  be  enforced,  legislatures 
throughout  the  free  States  connived,  in  just  the 
manner  the  Senator  from  Idaho  has  reprobated 
so  strongly,  for  the  purpose  of  defeating  the 
rights  of  the  South  under  that  law,  and  passed 
personal  liberty  laws.  Judges  and  juries,  too, 
refused  to  put  the  law  into  execution. 

Mr.  BORAH.  Does  the  Senator  want  to  plow 
through  that  mire  of  disgrace  and  degradation 
again  ? Does  he  appeal  to  a defiance  of  the  Con- 
stitution as  a precedent? 

Mr.  BRUCE.  I am  glad  to  hear  the  Senator 
say  it  was  a period  of  disgrace  and  degradation. 
As  far  as  I know,  the  Senator  is  the  only  mem- 
ber of  the  Republican  party  who  has  ever  made 
such  a confession. 

Mr.  BORAH.  I presume  some  might  doubt 
my  Republicanism,  but  I do  not  intend  anyone 
shall  challenge  my  devotion  to  the  Constitution. 

Mr.  BRUCE.  As  I look  at  it,  his  Republi- 
canism is  about  the  only  blemish  on  the  character 
of  the  Senator. 

Mr.  BORAH.  The  Senator  would  not  contend 
for  a moment  that  the  Northern  States  which  un- 


[ 12] 


dertook  by  legislation  to  nullify  the  provisions 
of  the  Constitution  which  gave  the  Southern 
States  the  right  to  follow  their  slaves  were  ap- 
plying constitutional  principles,  would  he?  They 
were  simply  evading,  nullifying,  and  destroying 
the  Constitution  itself. 

• Mr.  BRUCE.  Yes;  but  I mention  it  as  an- 
other illustration  of  the  fact  that  when  laws  un- 
dertake to  fly  in  the  face  of  nature  they  will  not 
be  observed. 

Mr.  BORAH.  Very  well,  Mr.  President ; 
the  Senator  and  I will  not  argue  that.  But  let 
us  go  back  to  the  fundamental  law  and  submit 
that  question  to  the  people  of  the  United  States 
and  see  what  they  say  about  it.  If  they  take  it 
out,  every  man  should  live  up  to  it  with  that  out, 
just  as  now  we  should  live  up  to  it  with  it  in. 

Mr.  BRUCE.  All  I meant  to  say  was  that 
slavery  became,  in  the  course  of  time,  an  offense 
to  the  moral  instincts  of  the  free  States  of  the 
Union  and  of  the  world,  and  of  course  constitu- 
tional restraints  proved  as  utterly  futile  for  the 
purpose  of  keeping  down  the  bitter  hostility  ex- 
cited by  the  institution  of  slavery  as  the  eight- 
eenth amendment  has  proved  in  keeping  down 
the  natural  desire  of  men  for  a form  of  rational 
enjoyment,  within  proper  limits. 

Mr.  CARAWAY.  Mr.  President,  will  the 
Senator  from  Idaho  permit  me  to  ask  a question’ 

Mr.  BORAH.  Yes. 

Mr.  CARAWAY.  If  we  should  carry  out  the 
theory  that  the  States  should  be  the  interpreters 
of  the  Constitution,  you  could  repeal  or  modify 
the  peonage  law  and  reestablish  slavery,  could 
you  not? 

Mr.  BORAH.  I suppose  you  could. 

Mr.  CARAWAY.  If  any  State  should  wish 
to  do  it;  if  the  States  should  be  the  guardians  of 
the  Constitution. 


[13] 


Mr.  BORAH.  Mr.  President,  suppose  some 
one  in  New  York  or  New  Jersey  or  Idaho  should 
make  a proposal  with  reference  to  determining 
for  itself,  as  a State,  whether  or  not  it  would 
obey  the  fifteenth  amendment,  or  determining 
for  itself  how  far  it  would  be  bound  by  the  four- 
teenth amendment,  or  determining  for  itself  how 
far  it  would  be  bound  by  the  seventeenth  amend- 
ment. 

What  would  these  gentlemen  who  are  now  pro- 
posing that  the  States  shall  pass  upon  the  ques- 
tion as  to  the  extent  to  which  they  will  be  bound 
by  the  eighteenth  amendment  say  to  such  a pro- 
posal? Or  suppose  the  fifth  article  of  the  Con- 
stution  of  the  United  States  were  involved, 
where  the  property  rights,  the  vested  interests, 
of  the  great  property-holding  people  of  the 
United  States  are  protected ; and  suppose  the 
Legislature  of  New  York,  or  a mass  meeting  in 
New  York,  should  pass  a resolution  that  the 
State  of  New  York  would  determine  for  itself 
how  far  it  would  be  bound  by  that  provision. 
The  Department  of  Justice  here  in  Washington 
would  have  the  members  of  that  mass  meeting 
in  prison  in  48  hours  as  communists  and  revolu- 
tionists. And  if  any  of  their  ancestors  had  come 
here  since  the  American  Revolution  they  would 
likely  seek  to  deport  them  as  communists. 

Mr.  BRUCE.  Mr.  President,  will  the  Sena- 
tor permit  me  to  ask  another  question? 

Mr.  BORAH.  I yield. 

Mr.  BRUCE.  Did  not  the  South  after  the 
Civil  War  determine  for  itself,  without  regard 
to  the  Fourteenth  and  fifteenth  amendments  to 
the  Federal  Constitution,  whether  it  would  or 
would  not  have  an  ignorant  negro  suffrage  riv- 
eted upon  its  neck?  Did  not  every  southern  man 
of  every  station  in  life  exercise  every  power  that 
lay  in  him  to  stay  the  consequences  of  that  fright- 
ful curse? 

Mr.  BORAH.  Mr.  President,  so  far  as  I 


[14] 


know  every  law  passed  by  the  Southern  States 
and  now  in  force  with  reference  to  negro  en- 
franchisement, or  the  right  of  the  Negro  to  vote, 
has  been  sustained  by  the  Supreme  Court  of  the 
United  States  as  constitutional. 

Mr.  BRUCE.  Another  illustration  were  those 
amendments  of  the  utter  vanity  of  passing  laws 
that  violate  the  primal  instincts  of  human  nature. 
What  good  did  they  do,  so  far  as  any  practical 
consequences  were  concerned?  Outraged  human 
nature  claimed  its  rights,  and  there  is  nothing 
which  I regard  with  more  satisfaction  than  the 
fact  that  when  I was  a boy,  living  in  a remote 
countryside,  all  the  white  citizens  of  that  com- 
munity were  banded  together  like  brothers  for 
the  purpose  of  nullifying  those  amendments  to 
the  Federal  Constitution,  and  defeating  the  will 
of  Congress  when  it  endeavored  to  enforce  them ; 
and,  thank  God,  they  defeated  it. 

Mr.  BORAH.  Mr.  President,  the  Senator  is 
preaching  the  doctrine  of  communism  here  in  the 
Senate  of  the  United  States. 

Mr.  BRUCE.  Oh,  no. 

Mr.  BORAH.  Yes,  the  Senator  is;  he  is 
preaching  anarchy. 

Mr.  BRUCE.  It  is  not  the  Senator  from 
Maryland,  but  the  Senator  from  Idaho,  who 
wishes  us  to  recognize  the  Soviet  Government. 

Mr.  BORAH.  I do ; and  I think  it  might  serve 
as  a good  example  for  us, ‘the  way  we  are  pro- 
posing to  do  things  in  this  country  at  this  time. 
I think  we  could  learn  lessons  from  them  if  such 
doctrine  as  I hear  now  is  to  prevail.  But  do  I 
understand  the  able  Senator  from  Maryland  to 
contend  that  the  Southern  States  are  now,  in  vio- 
lation of  the  Constitution  and  in  violation  of  the 
Supreme  Court  decisions,  disfranchising  the  ne- 
groes of  the  South  ? 

Mr.  BRUCE.  I mean  to  say  that  the  South 
has  solved  its  own  suffrage  problems  in  its  own 


way,  and  it  has  solved  them  so  wisely,  despite 
constitution  and  statutory  inhibitions,  that  the 
whole  country  has  acquiesced  in  its  conduct. 

Mr.  BORAH.  The  Senator  did  not  answer 
my  question.  Does  the  Senator  contend  that  the 
solution  which  he  speaks  of  is  a solution  in  con- 
travention and  in  violation  of  the  Constitution  of 
the  United  States  and  the  decisions  of  the  Su- 
preme Court  of  the  United  States? 

Mr.  BRUCE.  What  is  the  use  of  asking  me 
to  say  something  that  everybody  knows?  The 
southern  people  had  to  take  their  choice  between 
constitutional  abstractions  and  civilization,  and 
they  selected  civilization. 

Mr.  MOSES.  Oh,  no,  Mr.  President,  if  the 
Senator  from  Idaho  will  permit  me.  The  south- 
ern people  had  another  choice.  The  implications 
of  the  Constitution  are  that  a certain  vote  may 
be  suppressed,  but  if  suppressed,  there  is  a con- 
stitutional price  to  be  paid  for  it.  It  is  a great 
and  high  privilege  to  suppress  millions  of  votes, 
and  why  does  not  southern  chivalry  come  to  the 
front  and  pay  the  price  which  the  Constitution 
mentions  ? 

Mr.  BRUCE.  I recollect  that  one  of  the  mal- 
efactors who  gave  the  South  the  greatest  trouble 
after  the  Civil  War  was  a Moses  of  South  Caro- 
lina. 

Mr.  MOSES.  He  did  not  come  there ; he  was 
raised  there.  He  was  not  a carpetbagger. 

Mr.  BRUCE.  Surely  that  State  was  incapable 
of  producing  such  fruit  as  that. 

Mr.  MOSES.  He  was  not  a carpetbagger ; he 
was  indigenous. 

Mr.  BORAH.  If  I may  say  just  a word  in 
explanation,  at  the  risk,  I suppose,  of  being  criti- 
cized, I have  always  thought  that  the  enfran- 
chisement of  the  negro,  at  the  time  it  took  place, 
was  a mistake.  It  was  unjust  to  the  white  and 
unjust  to  the  colored  man. 


Mr.  BRUCE.  Of  course,  the  Senator  has. 

Mr.  BORAH.  I have  said  here  on  the  floor 
of  the  Senate  I thought  it  was  a mistake  to  take 
a race  which  had  been  in  slavery  for  300  years, 
and  overnight  put  upon  them  the  burdens  and 
obligations  of  discharging  political  duties  in  a 
great  representative  Republic,  an  almost  impos- 
sible proposition.  It  required  something  of  the 
negro  that  no  race  in  history  could  have  ade- 
quately met.  He  would  have  been  better  off  to 
have  worked  out  through  time  and  education  his 
franchise.  But  I do  not  agree  with  the  Senator 
that  at  the  present  time  the  Southern  States  are 
doing  these  things  in  violation  of  the  Supreme 
Court  decisions.  They  have  worked  out  a solu- 
tion within  the  Constitution  and  within  the  de- 
cisions of  the  Supreme  Court  of  the  United 
States. 

Mr.  McKELLAR.  That  is  precisely  what 
we  have  done  in  Tennessee. 

Mr.  BRUCE.  I think  the  less  we  say  on  the 
subject  the  better. 

Mr.  BORAH.  I think  so. 

Mr.  BRUCE.  But  I will  say  that  it  cost  us  a 
considerable  amount  of  blood  and  tears  to  bring 
the  rest  of  this  country  to  the  conclusion  that  the 
Senator  from  Idaho  has  reached. 

Mr.  BORAH.  The  Senator  from  Idaho  has 
reached  just  one  conclusion,  and  I put  it  plainly 
and  I challenge  the  Senator  from  Maryland  to 
controvert  it — that  so  long  as  the  Constitution  of 
the  United  States  remains  as  it  is,  it  is  the  duty 
of  every  loyal  citizen  to  help  enforce  it. 

Mr.  BROUSSARD.  Mr.  President,  will  the 
Senator  yield  to  me  for  a question? 

Mr.  BORAH.  I yield. 

Mr.  BROUSSARD.  Does  the  Senator  hold 
that  the  Congress  of  the  United  States  may  fix  a 
higher  percentage  than  one-half  of  1 per  cent  of 
alcoholic  content? 


Mr.  BORAH.  1 hold  that  the  issue  which  we 
are  now  seeking  to  meet  is  not  a percentage 
within  nonintoxicating  percentages.  What  is 
being  sought  is  to  give  a percentage  which  will 
give  these  people  an  intoxicating  drink. 

Mr.  BROUSSARD.  Does  the  Senator  con- 
tend that  the  fixing  of  1 per  cent  would  be  a vio- 
lation of  the  spirit  or  the  letter  of  the  eighteenth 
amendment  ? 

Mr.  BORAH.  I am  not  sufficiently  familiar 
with  drinks  to  know,  but  what  I say  is  that  if 
we  fix  the  percentage,  it  does  not  make  any  dif- 
ference what  it  is,  so  that  the  beverage  is  still 
nonintoxicating,  we  will  have  the  liquor  question 
here  just  as  prominently  and  persistently  and 
pronouncedly  as  ever  before.  What  the  Sena- 
tor’s constituency,  if  he  is  speaking  for  the  wets, 
is  asking  for  is  an  intoxicating  drink.  They  are 
not  asking  for  a percentage  that  will  add  a little 
more  flavor  to  a drink.  They  want  something 
which  will  be  intoxicating,  and  that  is  what  they 
are  fighting  for.  Does  the  Senator  contend  that 
the  people  who  oppose  the  present  Volstead  Act 
would  be  satisfied  if  it  were  changed  so  as  to 
give  a nonintoxicating  drink? 

Mr.  BROUSSARD.  I hope  the  Senator  will 
permit  me  to  say  just  a word.  The  Senator  has 
started  out  by  saying  that  he  is  not  acquainted 
with  liquors,  and  then  he  goes  on  to  assume  what 
those  who  advocate  modification  want.  My  pur- 
pose in  rising  was  to  ask  a question.  Does  not 
the  Senator  believe  that  those  who  believe  that 
one-half  of  1 per  cent  is  not  justified  under  a 
proper  interpretation  of  the  eighteenth  amend- 
ment are  entitled  to  fix  such  a percentage  by  law 
and  have  the  Supreme  Court  of  the  United 
States  pass  upon  that  law,  just  as  they  passed 
upon  the  fourteenth  and  fifteenth  amendments 
to  the  Constitution? 

Mr.  BORAH.  I will  answer  that,  and  I trust 
that  my  answer  will  not  seem  to  be  offensive,  but 


if  we  fix  the  percentage  and  make  it  such  that  it 
will  not  give  intoxicating  liquors  to  the  people 
who  are  asking  for  a change,  it  will  not  solve  the 
question  at  all.  What  we  are  seeking  to  do,  as 
I understand  it,  is  to  readjust  the  situation  so  as 
to  satisfy,  if  possible,  the  country  against  per- 
sistent insistence  upon  a change  of  the  prohibi- 
tion law.  If  we  fix  it  at  a percentage  which  does 
not  give  intoxicating  liquor,  it  will  solve  nothing. 
On  the  other  hand,  if  we  do  fix  it  at  a percentage 
which  will  give  intoxicating  drinks,  we  will  have 
violated  the  Constitution. 

Mr.  BROUSSARD.  During  the  war  3.75  per 
cent  beer  was  declared  nonintoxicating  by  the 
Supreme  Court  of  the  United  States.  Would 
the  Senator  believe  that  that  is  not  a reasonable 
interpretation  of  the  limitation  placed  upon  Con- 
gress to  define  intoxicating  liquor  and  to  fix  3.75 
per  cent? 

Mr.  BORAH.  Suppose  we  fix  it  at  3.75  per 
cent ; if  it  is  nonintoxicating  and  found  to  be 
such  in  practice  as  well  as  in  theory,  we  will  have 
solved  nothing. 

Mr.  BROUSSARD.  We  have  not  tried  it. 
We  have  not  tried  3.75  per  cent  beer.  The  peo- 
ple were  satisfied  with  3.75  per  cent  beer  during 
the  war. 

Mr.  BORAH.  Oh,  no. 

Mr.  BRUCE.  Mr.  President,  will  the  Senator 
yield  to  me? 

The  VICE  PRESIDENT.  Does  the  Senator 
from  Idaho  yield  to  the  Senator  from  Maryland? 

Mr.  BORAH.  I yield. 

Mr.  BRUCE.  I am  going  to  try  to  take  up 
the  matter  in  a little  less  controversial  spirit. 
The  proposition  that  the  Senator  seems  to  be 
emphasizing  is  the  proposition  brought  for- 
ward by  Mr.  Buckner.  Of  course,  so  far  as  we 
are  concerned,  we  are  not  responsible  for  any 
proposition  brought  forward  by  Mr.  Buckner. 


[19] 


The  bills  which  are  actually  pending  before  the 
Committee  on  the  Judiciary  are  bills  which  pro- 
vide for  2.75  per  cent  and  for  beer  that  does  not 
exceed  the  intoxicating  point.  So  far  as  I know, 
the  proposition  or  the  question  as  to  what  shall 
be  an  intoxicating  beverage  and  what  shall  not 
be  an  intoxicating  beverage  is  not  proposed  to 
be  remanded,  so  far  as  we  are  concerned,  to  the 
States  at  all.  Surely  the  Senator  would  not  un- 
dertake to  say  that  2.75  per  cent  beer  is  an  in- 
toxicating thing? 

Mr.  BORAH.  Surely  the  Senator  from 
Maryland  would  not  undertake  to  say  that  if  it 
is  not  intoxicating  that  the  people  for  whom  he 
speaks  would  be  satisfied? 

Mr.  BRUCE.  I would.  In  point  of  fact,  I 
can  speak 

Mr.  BORAH.  I am  not  speaking  now  par- 
ticularly of  legal  constituents,  but  I am  speak- 
ing of  the  people  who  are  insisting  that  they 
have  the  right  to  have  intoxicating  liquor. 

Mr.  BRUCE.  Because  the  people  of  Mary- 
land, for  illustration,  are  asking  for  2.75  per 
cent  beer,  it  does  not  follow  that  they  are  ask- 
ing for  an  intoxicating  beverage.  The  ordinary 
alcoholic  content  of  beer  made  in  the  city  of 
Baltimore  before  the  adoption  of  the  eighteenth 
amendment  was  3 to  3.5  per  cent.  The  Senator 
will  probably  be  surprised  when  I tell  him,  be- 
cause it  is  obvious  that  he  is  a highly  temper- 
ate man 

Mr.  BORAH.  I am,  I trust. 

Mr.  BRUCE.  So  am  I — that  it  was  the  prac- 
tice of  the  brewers  in  Baltimore  City  to  give  a 
gratuitous  allowance  each  day  of  16  glasses 
of  beer  to  each  and  every  driver  of  a brewery 
wagon,  so  slightly  intoxicating  was  the  mer- 
chantable beer  that  was  sold  at  that  time.  A 
man  simply  had  almost  to  drown  himself — he 
had  to  submerge  himself  practically  in  a sea  of 


[20] 


beer — to  intoxicate  himself  on  2.75  per  cent 
beer. 

Mr.  BORAH.  That  is  according  to  how  long 
he  has  been  at  the  business. 

Mr.  BRUCE.  The  general  idea  is  that  the 
longer  he  has  been  at  it  the  more  thoroughly 
inured  he  becomes.  But  the  Senator.  I think,  is 
mistaken  when  he  ignores  the  fact  that  a very 
large  measure  of  relief,  as  the  opponents  of  the 
Volstead  Act  see  it,  would  be  given  by  a modi- 
fication of  the  Volstead  Act  allowing  2.75  per 
cent  beer.  Light  wine  is  a different  matter.  I 
have  never  had  much  to  say  about  light  wines. 
I am  not  really  sufficiently  informed  on  the 
subject  to  know  what  percentage  of  alcoholic 
content  we  could  define  in  wine  that  would 
justify  any  wine  being  called  a light  wine;  but 
so  far  as  beer  is  concerned  there  is  no  reason 
in  the  world,  if  we  are  influenced  simply  by 
considerations  of  intoxication,  why  the  Amer- 
ican population  should  not  be  allowed  the  priv- 
ilege of  drinking  beer.  The  very  rich  and  well- 
to-do  will  obtain  their  wine  anyhow ; you  need 
not  trouble  yourself  about  that. 

Mr.  BORAH.  I am  going  to  trouble  myself 
about  it.  So  long  as  this  Constitution  remains 
as  it  is  I am  going  to  trouble  myself  about  it. 
I look  upon  the  rich  and  influential  who  violate 
the  Constitution  as  the  most  dangerous  people 
in  the  whole  community. 

Mr.  BRUCE.  They  will  take  care  of  it  in 
one  way  or  another,  and  it  does  not  make  any 
difference  how  much  you  concern  yourself 
about  it  or  what  abstract  propositions  you  may 
bring  forward  with  respect  to  it,  they  will  have 
it,  just  as  liberal  men  will  have  their  Sundays 
without  any  extreme,  puritanical,  blue  restric- 
tions. Just  as  they  will  have  all  sorts  of  things 
without  regard  to  merely  teasing,  unreasoning 
restrictions. 

I am  not  going  to  interrupt  the  Senator  any 


[21] 


more,  but  I wish  to  direct  his  attention  to  the 
fact  that  there  is  nothing  in  2.75  per  cent  beer, 
if  we  are  right,  that  is  inconsistent  at  all  with 
the  provisions  of  the  eighteenth  amendment, 
which  are  simply  aimed  at  intoxicating  bev- 
erages. 

Mr.  BORAH.  In  other  words,  I understand 
that  all  this  great  drive,  this  universal  hubbub 
throughout  the  United  States,  this  uproar  in 
the  market  place,  these  hearings,  and  this  great 
fight  that  is  going  on,  are  to  get  a little  more 
non-intoxicating  beverage,  more  of  the  same 
kind  of  stuff  which  you  now  reject. 

Mr.  BRUCE.  The  Senator  knows,  so  far  as 
I am  concerned,  that  his  remark  is  not  ap- 
plicable to  me,  because  nobody  knows  better 
than  he  does  that  I have  proposed  an  amend- 
ment to  the  eighteenth  amendment  to  the  Fed- 
eral Constitution. 

Mr.  BORAH.  Exactly.  I commend  the 
Senator  for  his  courage  and  his  intelligence  in 
meeting  the  issue. 

Mr.  BRUCE.  I do  not  think  that  2.75  per 
cent  beer  would  afford  to  the  rational  instincts 
of  the  people  of  this  country  the  full  measure 
of  relief  to  which  they  are  entitled. 

Mr.  BORAH.  That  is  what  I thought. 
[Laughter.]  A Daniel  come  to  judgment! 

Mr.  BRUCE.  And  I hope  I am  going  to 
be  a Daniel  that  will  come  to  such  a stern  judg- 
ment as  to  sweep  away  all  the  unnatural  and 
artificial  restrictions  of  prohibition. 

Mr.  BORAH.  That  is  what  I am  talking 
about.  The  Senator  wants  to  sweep  away  the 
inhibition  against  intoxicating  liquors. 

Mr.  BRUCE.  In  the  ordinary  course  of  con- 
stitutional procedure.  We  have  to  take  the 
first  step  in  every  relation  of  life.  Now,  that 
2.75  per  cent  is  the  first  step.  If  the  people  of 


the  United  States  are  not  willing  to  go  any 
further,  they  will  go  no  further. 

Mr.  BORAH.  Of  course  we  realize  that 
that  is  the  first  step,  and  it  is  to  weaken  the 
law  and  break  down  the  morale  of  the  situa- 
tion and  then  we  will  have  4 per  cent  and  5 per_ 
cent,  and  the  next  thing  we  will  repeal  the 
Constitution. 

Mr.  BRUCE.  It  may  be  that  2.75  per  cent 
beer  would  afford  such  a measure  of  relief  to 
natural  human  instincts  that  public  opinion 
would  then  come  to  the  aid  of  the  law  and  we 
would  not  have  this  disgraceful  spectacle  of 
the  law  weekly,  daily,  hourly,  momentarily  vio- 
lated in  the  United  States. 

Mr.  BORAH.  In  other  words,  all  that 
stands  between  the  people  of  the  United  States 
and  obedience  to  the  law  is  the  difference  be- 
tween 1.75  per  cent  beer  and  3.75  per  cent  beer. 

Mr.  BRUCE.  No;  the  difference  is  the  dif- 
ference between  rational  municipal  ordinances 
and  irrational  municipal  ordinances  which  vio- 
late one  of  the  elementary  impulses  of  human 
nature. 

Mr.  BORAH.  The  difference,  with  all  due 
respect  to  the  able  Senator  from  Maryland,  is 
the  difference  between  -the  Constitution  as  it  is 
and  the  Constitution  repealed.  If  the  Senator 
wants  to  repeal  the  Constitution  of  the  United 
States  he  has  a perfect  right  to  start  that  cam- 
paign. No  one  is  justified  in  criticizing  that. 
The  Constitution  was  made  and  will  be  unmade 
by  the  people  of  the  United  States.  If  it  is  not 
satisfactory  to  us,  let  us  change  it.  But  what 
I contend  is  that  all  this  maneuvering  with  ref- 
erence to  percentages,  and  so  forth,  is  to  evade 
the  Constitution  of  the  United  States,  to  un- 
dermine and  destroy  the  morale  of  its  enforce- 
ment, and  not  for  the  purpose  of  solving  the 
question  within  the  provisions  of  the  Consti- 
tution. 


[23] 


Mr.  BRUCE.  But,  may  I ask  the  Senator 
from  Idaho,  if  it  is  legally  competent  for  us  to 
enact  a statute  allowing  2.75  per  cent  beer  with- 
out violating  the  provisions  of  the  eighteenth 
amendment,  is  there  any  reason  why  that 
should  not  be  done? 

Mr.  BORAH.  Oh,  no;  but  it  will  not  solve 
anything.  It  will  not  settle  anything,  if  it  is 
not  intoxicating.  Your  fight  will  go  on. 

Mr.  BRUCE.  There  is  where  I do  not  agree 
with  the  Senator. 

Mr.  BORAH.  The  Senator  just  said  that  he 
has  not  much  to  say  about  light  wines. 

Mr.  BRUCE.  And  I have  not. 

Mr.  BORAH.  But  there  are  thousands  and 
hundred  of  thousands  and  millions  of  people  in 
the  United  States  who  have  something  to  say 
about  light  wines.  Will  they  be  satisfied  with 
that  beer?  They  would  be  offended  if  you 
offered  them  beer. 

Mr.  BRUCE.  I confess  my  ignorance  of 
that  subject.  I do  not  know  exactly,  techni- 
cally speaking,  what  constitutes  a light  wine 
and  a heavier  wine.  I do  not  know.  I know, 
as  I said  before,  that  whether  we  like  it  or  dis- 
like it,  the  affluent  portion  of  the  American 
population  are  going  to  have  their  wine— Con- 
stitution or  no  Constitution,  statute  or  no 
statute.  That  has  been  demonstrated. 

Mr.  BORAH.  I beg  the  Senator  to  permit 
me  to  proceed.  The  Senator  has  stated  the 
issue.  Let  us  argue  it.  The  Senator  has  stated 
that  the  issue  is  that  they  propose  to  have 
what  they  want  with  reference  to  intoxicating 
liquor — 

Mr.  BRUCE.  They  do. 

Mr.  BORAH.  Regardless  of  the  Constitu- 
tion of  the  United  States  or  the  statutes? 

Mr.  BRUCE.  They  do. 


[24] 


Mr.  BORAH.  If  that  be  true,  and  I have 
no  doubt  that  is  just  what  the  Senator 
thinks 

Mr.  BRUCE.  I do. 

Mr.  BORAH.  If  that  be  true,  is  not  the 
orderly  thing  to  do,  so  long  as  we  profess  to 
live  under  a constitutional  government,  to 
amend  the  Constitution  in  the  manner  provided 
by  the  Constitution  itself,  and  rewrite  the  char- 
ter under  which  we  live?  Can  the  Senator  con- 
ceive anything  more  degrading,  demoralizing 
and  undermining  to  the  good  citizenship  of  the 
people  than  to  have  a solemn  pledge  in  the 
Constitution  of  the  United  States  and  to  have 
great  Senators  stand  upon  the  floor  of  the 
United  States  Senate  and  say  the  people  are 
going  to  have  what  they  want  regardless  of 
whether  it  is  constitutional  or  not? 

Mr.  BRUCE.  I can  conceive  of  nothing 
more  deplorable,  nothing  more  tragic,  nothing 
more  scandalous,  but  I take  human  nature  as 
it  is.  In  other  words,  I look  at  this  question 
exactly  as  the  free-soiler  looked  at  the  insti- 
tution of  slavery. 

Mr.  BORAH.  Of  course,  and  when  Wen- 
dell Phillips  spoke  with  reference  to  that  prop- 
osition he  said,  “To  hell  with  the  Constitu- 
tion.” 

Mr.  BRUCE.  Yes ; he  did. 

Mr.  BORAH.  But  there  came  along  the 
man  who,  disregarding  Wendell  Phillips,  found 
a way  to  solve  that  great  question  by  amend- 
ing the  Constitution  of  the  United  States  and 
effectuating  the  change  which  he  desired  under 
the  Constitution  and  not  in  violation  of  it. 

Mr.  BRUCE.  How  did  he  find  it?  He 
found  it  by  tracing  his  way  through  fire  and 
smoke  and  flame  and  blood. 

Mr.  BORAH.  I am  one  of  those  who  be- 


[25] 


lieve  that  the  Constitution  of  the  United 
States  is  of  sufficient  value,  if  it  is  necessary, 
to  trace  our  way  through  blood  and  fire  in  order 
to  maintain  it  as  it  is.  [Applause  on  the  floor 
and  in  the  galleries.] 

Mr.  BRUCE.  So  do  I when  a great  ques- 
tion like  slavery  is  involved ; so  do  I when  a 
great  issue  like  that  of  national  sovereignty  is 
involved ; but  not  when  nothing  more  is  in- 
volved than  the  question  as  to  whether  a man 
shall  or  shall  not  be  allowed  to  enjoy  what'  I 
conceive  to  be  a perfectly  legitimate  measure 
of  human  indulgence. 

Mr.  BORAH.  Yes.  Well,  Mr.  President, 
there  is  scarcely  any  vice  that  human  nature 
may  indulge  that  the  particular  person  who  in- 
dulges it  does  not  resent  the  fact  that  the  law 
prohibits  or  inhibits  him  from  doing  so. 

Mr.  BRUCE.  That  is  not  so.  There  is  no 
uprising  against  punishment  for  forgery  or 
against  punishment  for  false  pretenses,  and, 
above  all,  there  is  none  against  punishment  for 
murder  or  for  rape  or  for  arson. 

Mr.  BORAH.  But  every  man  who  commits 
forgery  feels  toward  the  law  just  exactly  as 
the  Senator  does  toward  prohibition. 

Mr.  BRUCE.  He  does,  but  his  neighbors 
do  not.  The  difference  in  this  case  is  not  only 
that  the  man  who  takes 

Mr.  BORAH.  I am  not  sure  that  the  Sen- 
ator’s neighbors  do.  That  is  what  I want  to 
find  out. 

Mr.  BRUCE.  I have  previously  stated  to 
the  Senator  that  many  of  my  neighbors  regard 
with  great  leniency  the  violation  of  the  Vol- 
stead Act,  because,  as  they  conceive  it,  that 
act  has  no  true  moral  sanction  behind  it.  It 
endeavors  to  pronounce  something  as  being 
criminal  per  se  that  is  not  so. 

Mr.  BORAH.  Mr.  President,  there  are  hun- 


[26] 


dreds  and  thousands  and  millions  of  people  in 
the  United  States,  as  good  people  as  live,  who 
are  devoted  to  law  and  order,  who  believe  in 
obedience  to  law,  who  take  the  very  opposite 
view  from  that  of  the  able  Senator  from  Mary- 
land. They  believe  that  while  we  are  making 
a fight  to  maintain  those  provisions  of  the 
Constitution  which  protect  property  it  is  just 
as  necessary  to  make  a fight  for  the  mainte- 
nance of  the  provisions  which  protect  human 
values  and  the  home. 

Mr.  BRUCE.  That  is  simply  because  they 
are  misguided  enthusiasts  who  are  incapable 
of  drawing  the  true  line  of  distinction  between 
what  is  real  criminality  and  what  is  merely 
artificial  criminality. 

Mr.  BORAH.  That  doctrine  will  not  do  in 
this  country. 

Mr.  EDGE  rose. 

Mr.  BORAH.  I yield  to  the  Senator  from 
New  Jersey. 

Mr.  EDGE.  I will  wait  until  the  Senator 
from  Idaho  shall  have  finished  his  remarks. 

Mr.  BORAH.  Let  us  go  back  for  a moment 
to  what  I think  is  the  most  serious  proposition 
here.  I regard  all  this  discussion  of  percent- 
ages of  the  alcoholic  content  of  liquor  as  evad- 
ing the  question,  not  intentionally,  perhaps, 
upon  the  part  of  all  those  who  discuss  it. 
Every  Senator  here  knows  from  the  letters 
which  he  receives  every  day  that  the  thing 
which  many  people  are  asking  is  not  a change 
of  percentage  still  keeping  the  liquor  non-in- 
toxicating, but  what  they  are  writing  Senators 
about  now,  what  they  are  passing  resolutions 
about,  what  they  are  petitioning  about  is  for 
intoxicating  beverages. 

It  is  the  duty  of  the  Senate  of  the  United 
States,  if  it  has  not  lost  all  capacity  for  leader- 
ship, to  say  to  these  people.  “You  want  intoxi- 


[27] 


eating  beverages.  We  say  to  you  that  you  can 
not  get  them  under  the  Constitution,  which  we 
have  sworn  to  support,  until  you,  hy  the  or- 
derly processes  pointed  out  by  the  Constitu- 
tion, rewrite  that  instrument.” 

Mr.  BRUCE.  Mr.  President 

Mr.  BORAH.  Just  a moment.  I want  to 
speak  for  a few  moments. 

Mr.  BRUCE.  Of  course. 

Mr.  BORAH.  It  is  our  duty  to  do  that,  as 
men  whose  business  it  is  to  uphold  the  Consti- 
tution, who  have  sworn  to  support  the  Consti- 
tution and  who  ought  to  have  some  capacity 
for  leadership  when  the  Constitution,  of  the 
United  States  is  involved.  We  should  say  to 
those  who  are  advocating  a change,  “What  you 
want  is  intoxicating  liquors,  but  that  is  what 
you  can  not  have  until  you  take  out  of  the  Con- 
stitution that  which  the  people  of  the  United 
States  put  into  the  Constitution.”  That  is  what 
I am  contending  for  here  today.  Let  the  peo- 
ple understand  that  this  proposed  change  of 
the  Volstead  Act  would  settle  nothing;  it 
would  solve  no  problem.  It  would  leave  liquor 
here  haunting  the  corridors  of  the  Capitol,  and 
these  people  would  be  petitioning  Congress 
next  year  just  the  same  as  they  are  doing  this 
year.  What  these  people  are  interested  in  is 
doing  what  the  Constitution  does  not  permit 
them  to  do. 

Mr.  BRUCE  and  Mr.  EDGE  addressed  the 
Chair. 

The  VICE  PRESIDENT.  Does  the  Sena- 
tor from  Idaho  yield,  and,  if  so,  to  whom? 

Mr.  EDGE.  I thought  the  Senator  from 
Idaho  had  concluded  his  remarks. 

Mr.  BRUCE.  Mr.  President,  the  Senator 
from  Idaho  knows  that  I have  offered  an 
amendment  to  the  Constitution  involving  a 
combination  of  the  Quebec  plan  of  government 


[28] 


supervision  and  control  and  local  option ; in 
other  words,  I am  pursuing  the  very  pathway 
that  he  thinks  that  I and  those  associated  with 
me  should  pursue.  Now  I will  ask  the  Senator 
from  Idaho,  Does  that  constitutional  amend- 
ment meet  with  his  approval  or  not? 

Mr.  BORAH.  Distinctly  not.  I do  not 
want  this  Government  to  become  a saloon 
keeper.  If  that  must  go  on,  let  it  be  by  indi- 
viduals. But,  as  I said  a moment  ago,  I do 
not  want  to  discuss  indefinitely  and  exclu- 
sively the  question  of  percentages. 

I wish  to  refer  again,  for  the  consideration 
of  the  Senate,  to  the  great  referendum  which 
the  people  are  going  to  hold  in  the  state  of 
New  York.  They  are  going  to  petition  the 
Congress  of  the  United  States  by  the  voice  of 
the  people  of  New  York  to  do  what?  To  vio- 
late the  Constitution  of  the  United  States.  Do 
the  people  of  a great  Commonwealth  such  as 
New  York,  with  its  distinguished  leaders  of 
the  past  and  its  distinguished  leaders  of  the 
present,  its  great  educators,  its  great  lawyers, 
its  great  jurists,  and  its  great  religionists,  pro- 
pose to  come  down  here  with  a solemn  refer- 
endum to  the  effect  that  the  Congress  of  the 
United  States  shall  disregard  the  Constitution 
of  the  United  States?  They  propose  to  peti- 
tion us  to  leave  the  enforcement  of  the  Con- 
stitution to  the  States — a shameless  proposi- 
tion. 

Is  it  not  infinitely  better,  more  in  accord  with 
good  citizenship  and  with  representative  gov- 
ernment, that  they  submit  to  the  people  of  the 
State  of  New  York  the  question  of  petitioning 
Congress  to  submit  to  the  States  for  ratifica- 
tion an  amendment  which  will  take  out  the 
eighteenth  amendment  from  the  Constitu- 
tion? Can  you  meet  the  question  any  other 
way?  Is  there  any  other  orderly  and  decent 
way  to  proceed?  Can  you  solve  the  problem 


[29] 


by  any  other  method  or  any  other  process? 
I ask,  Mr.  President,  is  it  honest,  is  it  candid 
leadership,  is  it  in  accord  with  the  principles 
of  the  great  Republican  and  Democratic  par- 
ties to  seek  to  evade  the  question  by  asking 
us  to  violate  the  Constitution  of  the  United 
States,  to  disregard  it?  Let  us  be  candid 
enough  to  speak  to  the  people  in  constitutional 
language,  in  language  befitting  public  men  in 
a government  of  law. 

Mr.  President,  the  liquor  problem  can  not 
be  disposed  of  by  amendments  which  do  noth- 
ing more  than  add  an  additional  flavor  to  the 
drink.  It  can  not  be  put  at  rest  by  changing 
the  percentage  if  that  percentage  fails  to  give 
intoxicants.  The  contest  is  not  over  percent- 
ages. It  involves  deeper  and  more  searching 
questions.  After  you  have  made  your  changes 
as  proposed,  if  you  remain  within  the  provi- 
sions of  the  Constitution,  your  liquor  problem 
will  still  be  here,  unsettled,  undetermined, 
haunting  the  corridors  of  Congress  and  tor- 
menting public  opinion,  insistent  of  attention 
and  rapacious  in  its  demands.  Deep  convic- 
tions are  found  on  either  side  of  this  question. 
Great  governmental,  as  well  as  great  moral, 
problems  are  involved  and  percentages  will 
not  meet  the  situation. 

But  what  I arose  to  say  at  this  time  is  that 
whether  prohibition  stays  or  goes,  rises  or 
falls,  the  Constitution  should  be  maintained 
and  supported  as  it  is  written  by  all  law-abid- 
ing people  until  it  is  changed  in  the  manner 
pointed  out  by  the  Constitution.  Obedience 
to  the  law  is  the  rock  foundation  upon  which 
our  whole  structure  rests.  To  disregard  it  is 
to  strike  at  the  life  of  the  Nation.  And  while 
disrespect  for  law  applies  to  all  laws,  statutes, 
and  enacted  laws,  there  is  a more  sacred  im- 
port to  that  rule  of  conduct  when  the  Constitu- 
tion itself  is  involved.  It  is  the  law  of  the 
land,  the  charter  of  our  Government,  approved 


by  the  people,  defining  and  guaranteeing  the 
rights  of  the  citizen,  prescribing  the  duties, 
functions,  and  limitations  of  government,  and 
to  disregard  it  is  to  spell  the  end  of  order  and 
representative  government. 


